Cadillac Fairview/California, Inc. v. United States

dissenting:

I respectfully dissent.

After the Japanese captured Malaya during World War II, we were cut off from the world’s major supply of rubber. A substitute was essential to the war effort. , Fortunately, we had obtained from the Germans the secret of how to make artificial rubber from styrene and butadiene. The government built a synthetic rubber plant and hired several companies to run different parts of it. The rubber companies, as government agents working with government-owned materials on government property, “arranged” nothing. They did what they were told, to furnish the government with the rubber needed for the war. The valuable styrene was piped back into the chemical plant, when it fell below specified purity requirements, for distillation and reuse.

We need not decide anything regarding the merits of this case. We should not resolve the difficult legal issues presented here, because there is no final judgment on all issues and all parties, and when there is one, it is likely to moot the dispute we now resolve. All the companies involved had clauses in their contracts with the government requiring the government to hold them harmless for any liabilities arising…

When denied access to its primary sources of natural rubber during World War II, the United States contracted with Dow Chemical Company, Goodyear Tire and Rubber Company, Shell Oil Company, and United States Rubber Company (the predecessor of Uniroyal Goodrich Tire Company) to construct, lease, and operate a government-owned, synthetic rubber manufacturing complex on land owned by the United States." The complex consisted of four units: a unit for the production of styrene operated by Dow; a unit for the production of. butadiene operated by Shell; and two units for combining the styrene and butadiene to form synthetic rubber operated by the two rubber companies, Uniroyal and Goodyear.

Under the various operating agreements, Dow paid for materials used to produce styrene, and the rubber companies paid Dow for the finished styrene. The United States, however, retained ownership of the raw materials and the styrene. It reimbursed the companies for their costs and paid them a fee for operating the various plants.

*564 The rubber companies converted into synthetic rubber only 60 to 70 percent of the styrene they received from Dow. The unconverted styrene contained contaminants from…